Joel A. Hamilton and Delphas A. King, Respondents, v. The Village of Owego, Appellant

Joel A. Hamilton and Delphas A. King, Respondents, v. The Village of Owego, Appellant. Highway by prescription — the fact that the owners of land permit people generally to travel over it docs not create one. The fact that the owners of land opened a way through it for their own use, and permitted people generally to travel over the way for various purposes, does not constitute the way a highway by prescription. Appeal by the defendant, The.Village of Owego, from a judg: ment of the Supreme Oourt in fayor of the plaintiff Joel A. Hamilton, entered in the office of the clerk of the county of Tioga on the 3d day of January, 1899, upon the report of a referee adjudging that the entry of the defendant upon the lands of the plaintiff Joel A. Hamilton, for the purpose Of constructing and maintaining a highway, was without right and unlawful, and enjoining the defendant, its attorneys, officers, agents and employees, from entering upon or doing any act for the purpose of laying out, repairing or maintaining a highway across said lands, and further adjudging that the said plaintiff recover from the defendant the sum of $125 damages, together with costs and disbursements. Oscar B. Clezen, for the appellant. ■F. IK Clifford-, for the respondent Hamilton. Martin 8. Lynch, for the respondent King. [MAJORITY — Herrick, J.:] Herrick, J.: There is no claim upon the part of the appellant in this case that the strip of land in question was ever dedicated by the owners as a public highway, or accepted as such by the village authorities. The claim is, that it became a highway by prescription. I do not think that the evidence establishes a highway by prescription, or that there was sufficient evidence to justify a finding by the referee to that effect. The use by the public was not adverse to the title of the plaintiffs or their predecessors in title. ¡ The most that the evidence establishes in regard to the way in question, is, that it was opened by the owners of the land through which it passes for their own use, and that they permitted people generally to travel over it for various purposes; that does not constitute it a highway by prescription, as has been held in Speir v. Town of New Utrecht (49 Hun, 294; affd. in 121 N. Y. 420; appd. in People v. Underhill, 144 id. 316, and Palmer v. Palmer, 150 id. 139). The judgment should, therefore, be affirmed. All concurred, except Parker, P. J., not sitting. Judgment affirmed, with costs.